Friday’s U.S. Supreme Court decision finding a place for same-sex couples in the fundamental right to marry is a historic moment for human rights and a shining example of an increasingly rare beast – the vindication of rights through litigation.
It is also a major political victory for Barack Obama. I took it all in on Friday in the context of finally getting around to listening to Obama’s much-discussed interview with Marc Maron, whose podcast has been a part of my life since I think it’s late teens or early twenties (it’s now at episode no. 615). In it, Obama defended the incrementalism that has marked his presidency in the most robust terms I have heard. He likens social change to steering an ocean liner, arguing that ships that big, like societies, don’t turn 40-50 degrees all at once, and you just have to be happy with making a 1-2 degree turn in the right direction and hopefully live long enough to appreciate the change that is made in any significance.
But the same-sex marriage victory suggests Obama’s pessimism might be overplayed. On this issue, and gay rights generally, he has shown that social change can come about in sweeping fashion, especially where it is driven by principle and conviction by the executive branch. On gay rights, Obama’s presidency has followed a style entirely unlike the incrementalism and defeatism that has characterized his approach to just about every other issue (at least since health care). In 2011, the administration announced that it would not defend the Defense of Marriage Act in courts—not just disagreeing with it, but stating that it was unconstitutional and casting it (correctly) as morally repugnant. In 2012, of course, first Biden and then Obama came out in support of same-sex marriage rights, and the Solicitor General’s office filed briefs in support with the Supreme Court.
But the work that the administration did went far beyond simply expressing a political preference; it used a variety of tools and leadership platforms to unapologetically frame it as the civil rights issue as our time and to frame opposition as oppressive, irresponsible, and disrespectful sometimes to the point of hateful—a harsh characterization but one based on the facts. In his January 2013 inaugural address, Obama placed gay rights directly in the mainstream of the struggle for sex and race equality: “Seneca Falls, and Selma, and Stonewall.” In 2013 and 2014, the Justice Dept took aggressive steps to recognize same-sex marriages to the maximum extent possible at the federal level. And when the Supreme Court stayed a Utah federal court decision in favor of same-sex marriage, thus leaving 1,300 marriages that had been consummated in the interim in the lurch with Utah’s governor openly questioning the legal status of those marriages, the DOJ took the unequivocal position that the marriages were valid and would be respected at the federal level. The move left Utah looking terrible, bent on ripping consummated marriages out of the hands of loving couples who had finally realized their dreams. The DOJ took the same position when the situation arose again with Michigan, and even brought similar pressure to bear on the Supreme Court itself. Throughout the process, the administration kept steadfast despite pressure from sensitive constituencies and allies, like African American pastors.
I don’t know what Obama’s position is on whether or how much credit he deserves for Friday’s historic marriage decision. In my view, he deserves a lot—he and his team showed exemplary, unflagging, and inspiring leadership on the issue and it made a huge difference. It turned the ship around, not by incremental degrees but in a sweep of change in, really, the space of only 3-4 years. But the analysis also shows, in my view, the larger tragedy of the Obama administration. If he had shown the same leadership on other issues that (I suspect) he believes in but that he has instead swathed in ocean-liner pessimism—torture, militarization, immigration, environmental protection, human rights—imagine where we could be.